In December 2012, the Russian Federation enacted into law an adoption ban that effectively halted all United States citizens from adopting Russian orphans. The new law has been called the Adoption Ban, the Dima Yakovlev Law, or the Anti-Magnitsky Act depending on the view and political orientation of the commentator. Despite the name of the ban, the effects were clear. Hundreds of prospective parents in the process of adopting children were halted in their tracks. Children that were on track to come to the United States in a period measured in months were redirected to a permanent track of staying in Russian orphanages.

The Russian government was vilified by a host of parents, organizations, government officials and charitable organizations. Being on the side of people ready to bring a parentless child to the United States appeared to be a bullet-proof, public relations friendly position. Many of those people blamed the Russian government for heartless, insensitive acts directed at hapless victims. But the U.S. is partially to blame for the ban and the Russian Federation has some valid points. A core reason for the ban was the inability of the U.S. to adhere to its own promises. That promise consisted of a responsibility to follow an adoption treaty entered into with Russia. And the U.S. has failed miserably on that promise.

A central part of U.S.-Russia cooperation on adoption was the enactment of a treaty on adoption, known as the Agreement between the United States of America and the Russian Federation Regarding Cooperation in Adoption of Children, also referred to as the Bilateral Adoption Treaty. The treaty came into force on Nov. 1, 2012, and was the product of several years of negotiation between the U.S. and Russia. The treaty, in part, provided for monitoring of every Russian child adopted by U.S. citizens. That monitoring would include Russian consular access and information sharing concerning the continued welfare of the child. The monitoring and information sharing were intended to remedy problems that became apparent in the 2008 death of a U.S.-adopted orphan, Dima Yakovlev. That death highlighted the lack of Russian access to information in child abuse situations involving adopted children. The Bilateral Adoption Treaty specifically addressed and remedied shortfalls in Russian access to information regarding their adopted children.

The laws regarding child abuse are primarily governed by individual states. That fact has presented immediate hurdles to cooperation with the access and information provisions of the Bi-Lateral Adoption Treaty. One glaring point of friction has been the refusal of various U.S. government agencies to provide Russian consular assess in abuse cases. The main culprit is the patchwork of federal and state laws regarding confidentiality in situations involving children. But the main effect of that patchwork is the almost-complete failure of the U.S. to comply with the access provisions of the adoption treaty.

The U.S.-based child protective system is shrouded in secrecy and confidentiality in an attempt to protect children-victims. In one example, the state of Florida, there are statutes in place that make it a felony to disclose documents that are part of an abuse file. Florida has a network of courts known as Dependency Courts. The Dependency Court system considers cases of children that have been removed from possibly unfit homes. The files are closed from public view and the only people that may look at them are parties actively involved in a particular case. The confidentiality provisions have prevented Russian authorities from seeking the most basic information concerning potential abuse situations of former Russian citizens. The end result is that every child abuse case involving former Russian orphans inadvertently violates the Bilateral Adoption Treaty.

While the Russian adoption ban has shattered the hopes and dreams of hundreds of parents, the U.S. legitimately shares part of the blame. There are allegations, many of them true, alleging the adoption was retaliation for the U.S. passing certain human rights laws. But the bottom line is that any treaty is dependent on the good faith action of both sides. In that regard, the U.S. has failed to uphold their end of the bargain. The Russian access provisions were agreed upon, but turned out to be difficult and impractical to follow. In the end, the treaty failed because of many factors on both sides. Because it is important to maintain a clear picture of all failed situations, the U.S. should shoulder its part of the blame due to lack of response to the access requirements of the treaty.

The author, Howard Iken, is an Orlando, Fla., divorce and custody attorney. Mr. Iken and his wife were one of the approximately 300 families nationwide in the process of adopting a child from Russia with the adoption ban was enacted.

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